Quatrevingt v. Cain

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 01-30523
_______________
STEPHEN QUATREVINGT,
Petitioner-Appellee,
VERSUS
BURL CAIN,
WARDEN, LOUISIANA STATE PENITENTIARY,
Respondent-Appellant.
_________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
_________________________
November 15, 2001
Before SMITH and EMILIO M. GARZA, Circuit
Judges, and CUMMINGS, District Judge.*
JERRY E. SMITH, Circuit Judge:**
The State of Louisiana, through its warden,
appeals a grant of habeas corpus relief to Ste-
phen Quatrevingt regarding his murder
conviction. Finding no cognizable constitu-
tional error, we reverse.
I.
* District Judge of the Northern District of
Texas, sitting by designation.
** Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be
published and is not precedent except under the
(continued...)
**(...continued)
limited circumstances set forth in 5TH CIR. R.
47.5.4.

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2
Quatrevingt was convicted in 1990 of first
degree murder while in the perpetration or at-
tempted perpetration of an aggravated rape.
He pursued direct appeals unsuccessfully. In
1999, he filed a habeas corpus petition in fed-
eral court alleging numerous constitutional er-
rors. The state raised four objections to the
petition: (1) The petition was time barred un-
der the one-year statute of limitations found in
28 U.S.C. § 2244(d); (2) the petition should be
denied for failure to exhaust state remedies;
(3) the petition should be rejected for failure to
satisfy the Louisiana contemporaneous ob-
jection rule under the procedural bar doctrine;
and (4) the petition should be rejected on the
merits.
Pursuant to 28 U.S.C. § 636(b)(1)(B), the
matter was referred to a magistrate judge
(“MJ”), who recommended rejecting all the
state’s procedural objections to the petition
and granting habeas relief on the ground that
the charge to the jury was unconstitutional.
The state failed to object to the MJ’s
recommendations within the ten-day period
provided by the order. See 28 U.S.C. §
636(c).1
The district court adopted the
recommendations of the MJ after conducting
de novo review of the portions objected to.
The only modification the court noted was a
slightly different approach to finding the
charge to the jury unconstitutional. The MJ
had recommended that the initial charge be
found unconstitutional; the district court found
the initial charge valid, but the state trial
court’s response to a jury question for
clarification of the charge unconstitutional.
II.
The state’s first three objections are
procedural. The MJ recommended that all of
these claims are meritless and should be
resolved in favor of Quatrevingt; the district
court adopted these recommendations without
objection. The state’s failure timely to object
to the findings and recommendations affects
our standard of review.
The recommendations and conclusions of a
MJ are reviewed for plain error if not objected
to within ten days of their issuance. See
Douglass v. United Servs. Auto. Ass’n, 79
F.3d 1415, 1429 (5th Cir. 1996) (en banc).
The report and recommendation of the MJ was
issued on October 27, and the state did not
offer its objections until December 4, well after
the ten-day limit. Where the district court
conducts de novo review of the unobjected-to
MJ’s report, however, we ordinarily will not
enforce the forfeiture rule against the party
failing to object. See Meister v. Tex. Adjutant
General’s Dep’t, 233 F.3d 332, 336 (5th Cir.),
cert. denied, 121 S. Ct. 2194 (2001).2 We
thus review the district court’s findings of fact
under our usual clear error standard. See Per-
illo v. Johnson, 205 F.3d 775, 781 (5th Cir.
2000).
III.
The state contends that Quatrevingt’s peti-
tion was untimely. In relevant part, the Anti-
terrorism and Effective Death Penalty Act of
1996 (“AEDPA”) imposes a one-year statute
of limitations on habeas petitions, running
1 The state ultimately filed objections.
2 There is a limited exception to this rule not
applicable here. If the district court rules in the
alternative that, not only did a party fail to object
to a certain point, but, even if he did, the objection
is without merit, we may affirm on the basis of
lack of a proper objection. See Douglass, 79 F.3d
at 1429.

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3
from the time the conviction becomes final. 28
U.S.C. § 2244(d)(1)(A). This limit is tolled
while any “properly-filed state post-conviction
or other collateral relief” is pending. 28
U.S.C. § 2244(d)(2). Quatrevingt’s direct
review process unquestionably ended with the
denial of certiorari on October 15, 1996.3 His
federal habeas petition was filed on July 9,
1999, well after the one-year limit. He claims,
however, to have filed a state collateral action
on April 27, 1997.
The state does not argue that Quatrevingt’s
limitations period should not be tolled because
his application for post-conviction relief was
either improperly filed or is no longer pending.
Cf. Williams v. Cain, 217 F.3d 303 (5th Cir.
2000) (discussing requirement of proper
filing).4 The state argues, instead, that his
state application was not filed at all. The MJ
found the state had filed a “Motion to Dismiss
Petitioner’s Post-Conviction Application” on
April 28, 1997, as evidence Quatrevingt had
filed his state petition within the one-year pe-
riod. The state courts apparently have not
ruled on this petition, and it thus remains
pending. This in turn tolls limitations, making
Quatrevingt’s federal habeas petition timely
under § 2244(d)(1)(A).
On appeal, the state argues that its motion
to dismiss Quatrevingt’s petition is not proper
evidence of the time of filing. This argument
is raised for the first time on appeal; we do not
consider theories presented for the first time
on appeal.5 Leverette v. Louisville Ladder
Co., 183 F.3d 339, 342 (5th Cir. 1999). The
district court did not commit clear error by
finding Quatrevingt’s federal habeas petition
timely filed.
IV.
The state challenges Quatrevingt’s habeas
petition for failure to exhaust his claims in
state court. AEDPA requires a state prisoner
seeking federal habeas relief to exhaust state-
court remedies absent circumstances that “ren-
der such processes ineffective.” 28 U.S.C.
§ 2254(b)(1). This finding is also reviewed for
clear error, because the MJ’s unobjected-to
recommendation was reviewed de novo by the
district court.
A federal habeas petitioner has not
exhausted his federal claims “if he has the right
under the law of the State to raise, by any
available procedure, the question presented.”
28 U.S.C. § 2254(c). A petitioner has
exhausted his state law remedies if he has
presented the argument for relief to the state’s
highest court at least once. See United States
v. Sones, 61 F.3d 410, 415 (5th Cir. 1995).6
3 See State v. Hoffman, 768 So. 2d 592 (La.
2000) (recognizing denial of certiorari as one
ground for finality of direct review).
4 Our review of this determination does not
implicate the question whether Quatrevingt’s peti-
tion was “properly filed” (a legal question we re-
view de novo. Johnson v. Cain, 215 F.3d 489,
494 (5th Cir. 2000)). Our inquiry here is limited to
the factual question whether the petition was filed
at all.
5 The state did object to the MJ’s report, but
only is a “vague manner.” This vague objection in
not sufficient to permit a new argument on appeal.
6 See also O’Sullivan v. Boerckel, 526 U.S.
838, 845 (1999) (“Because the exhaustion doctrine
is designed to give the state courts a full and fair
opportunity to resolve federal constitutional claims
before those claims are presented to the federal
courts, we conclude that state prisoners must give
the state courts one full opportunity to resolve any
constitutional issues by invoking one complete
(continued...)

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4
The MJ found that Quatrevingt had argued
the constitutionality of the jury charge to the
Louisiana Supreme Court. This determination
did not involve asking whether a legal theory
had been presented to that court, but only
whether Quatrevingt actually had presented
this very argument.
Specifically, the state alleges Quatrevingt
did not “take this issue” to the Louisiana
Supreme Court. This is a factual matter.
Factual questions raised by habeas petitions
are reviewed for clear error, as are any other
civil factual questions. See Donahue v. Cain,
231 F.3d 1000, 1003 (5th Cir. 2000). There is
no clear error in the finding that the jury
charge argument was presented to the
Louisiana Supreme Court.
V.
The state’s final procedural argument is
based on the doctrine of procedural bar. Be-
cause the MJ’s report on this issue was
reviewed de novo, we apply our normal
standard of review and review de novo. Boyd
v. Scott, 45 F.3d 876, 879 (1994).
If a state court rejects a challenge to a crim-
inal conviction on the basis of a state
procedural rule, federal habeas relief may be
foreclosed. This bar operates only where the
decision of the last state court to which the
petitioner presented the federal claims “fairly
appeared to rest primarily on resolution of
those claims, or be interwoven with those
claims, and did not clearly and expressly rely
on an independent and adequate state ground.”
Coleman v. Thompson, 501 U.S. 722, 735
(1991).
The requirement that a state court “clearly
and expressly” demonstrate reliance on a state
ground is not automatic. This duty is
triggered only where the state court decision
gives the federal habeas court “good reason”
to suspect the decision is based on federal law
by “fairly appearing” to do so or by
interweaving the claims. Id. at 739. “The key
is not the clarity of the state court’s language,
or even whether the state court addressed the
merits of the federal claim, but whether the
state court may have based its decision on its
understanding of federal law.” Young v. Her-
ring, 938 F.2d 543, 553-54 (5th Cir. 1991) (en
banc). Where the state court has addressed
the merits of the federal claim, we may infer
waiver, absent a clear and express statement of
reliance on the state procedural ground. See
id. at 553 n.12.
The Louisiana Supreme Court’s entire dis-
cussion of the jury charge consisted of the fol-
lowing:
Despite the absence of a
contemporaneous objection at trial,
defendant contends that the trial court’s
jury instruction on reasonable doubt
requires reversal under Cage and
Sullivan . . . . The reading of this
charge, with its use of the terms ‘grave
uncertainty,’ ‘moral certainty,’ and
‘actual and substantial doubt,’ no longer
mandates relief. See State v. Smith.
According to the United States Supreme
Court’s reexamination of its reasonable
doubt jurisprudence undertaken in
Victor v. Nebraska and this Court’s
implementation of Victor in Smith, the
instruction in the instant case did not
allow the jury to convict without
satisfying the reasonable doubt
requirements of In re Winship. The
6(...continued)
round of the State’s established appellate review
process.”).

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5
foregoing terms do not suggest a higher
degree of doubt than is required for
acquittal under the reasonable doubt
standard. Nor do the foregoing terms
suggest that ‘reasonable doubt’ is mere
speculation.
State v. Quatrevingt, 670 So. 2d 197, 211 (La.
1996).
This analysis leaves little doubt the
Louisiana Supreme Court did not rely on the
state procedural ground or even hold in the
alternative. The attention the court paid to the
federal constitutional ground permits us to
infer reliance on it without a “clear and
express” statement to the contrary. See
Young, 938 F.2d at 553 n.12.
At best, the state court’s treatment of the
issue interwove the state and federal grounds.
Where this is the case, there is good reason for
us to reject an explanation for the decision
grounded solely on a state procedural
foundation. The state may have based its
decision on federal grounds; this permits us to
find no independent and adequate state ground
precluding our review.
VI.
The substance of Quatrevingt’s habeas peti-
tion challenges the jury charge and subsequent
explanation to the jury of the meaning of
reasonable doubt. Because the district court
reviewed de novo the MJ’s conclusion on the
merits of the habeas claim, we employ our
usual standard of review. Meister, 233 F.3d at
336. Our review of a district court’s legal
conclusions in habeas proceedings is de novo.
Clark v. Scott, 70 F.3d 386, 388 (5th Cir.
1995). The substance of a habeas claim,
however, is reviewed under the highly-
deferential framework of AEDPA, under
which the burden is on the habeas petitioner to
demonstrate that the state court decision “was
contrary to, or involved an unreasonable
application of, clearly established Federal law,
as determined by the Supreme Court of the
United States.” 28 U.S.C. § 2254(d)(1).
AEDPA affords two avenues of relief. The
petitioner must show the state court
construction was either “contrary to” federal
law or an “unreasonable application” of it. To
be “contrary to” federal law, the state court
must apply a rule that contradicts a rule laid
down by the Supreme Court. See Williams v.
Taylor, 529 U.S. 363, 405 (2000).
A second avenue of relief is available where
the state court unreasonably applies federal
law. This inquiry involves asking “whether the
state court’s interpretation of clearly
established federal law was objectively
unreasonable.” Id.
Some of our recent cases have fleshed out
the meaning of “objectively unreasonable.” In
Martin v. Cain, 246 F.3d 471, 476 (5th Cir.
2001), cert. denied, 122 S. Ct. 194 (2001), we
stressed that to be unreasonable, the state
court application of federal law must be more
than merely erroneous. Our role under this in-
quiry is not to determine whether the state
court construction of federal law was merely
wrong, but whether it was wrong to the point
of being unreasonable. Stated another way,
“mere disagreement with the state court is not
enough.” Orman v. Cain, 228 F.3d 616, 619
(5th Cir. 2000). The question here is whether
the Louisiana state court misapplied a federal
standard or whether the state court’s decision
that the instructions to the jury did not violate
the Constitution is objectively unreasonable.
The jury charge contained the phrases

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6
“grave uncertainty,” “substantial doubt,”
“moral uncertainty,” and “a serious doubt for
which you can give good reasons” to describe
more fully the meaning of reasonable doubt.7
7 The charge in its entirety read:
Ladies and gentlemen, the defendant is
presumed to be innocent until proven guilty
beyond a reasonable doubt. The con-
sequence of this rule of law, he is not
required to prove his innocence but may rest
upon the presumption in his favor and to
overturn by positive affirmative proof. The
onus, therefore is on the State to establish,
to your satisfaction, and beyond a rea-
sonable doubt, the guilt of the accused as to
the crime charged or any lesser one included
therein. If you entertain any reasonable
doubt as to any of the facts or elements
necessary to constitute the defendant’s guilt,
it is your sworn duty to give him the benefit
of that doubt and return a verdict of Not
Guilty. Even where the evidence demon-
strates a probability of guilt, yet if it does
not establish it beyond a reasonable doubt,
you must acquit the doubt. This doubt must
be a reasonable doubt, that is one founded
upon real, tangible, and substantial basis,
and not upon a mere caprice or fancy or a
conjecture. It must be such a doubt as
would give rise to grave uncertainty raised
in your mind by the reason or the
unsatisfactory character of the evidence, one
that would make you feel that you had not,
an abiding conviction to a moral certainty of
the defendant’s guilt. If, after giving a fair
and impartial consideration of all the facts
in the case, you find the evidence
unsatisfactory upon any single point
indisputably necessary to constitute the
defendant’s guilt, this would give rise to
such a reasonable doubt as would justify
you returning a verdict of Not Guilty. The
prosecution must establish guilt by legal and
(continued...)
7(...continued)
sufficient evidence beyond a reasonable
doubt, but the rule does not go further and
require a preponderance of the testimony. It
is incumbent upon the State to prove the
offense charged, or legally included in the
indictment, to your satisfaction and beyond
a reasonable doubt.
A reasonable doubt is not a mere pos-
sible doubt. It should be an actual and sub-
stantial doubt. It is such a doubt as a
reasonable man would seriously entertain.
It is a serious doubt for which you can give
a reason. In other words, ladies and
gentlemen, when you go back and you’re
going to decide this case, and somebody an-
nounces, I have a doubt. The duty of the
other eleven is to ask the question, Why do
you have the doubt? Why do you have the
doubt? You’ve got to be able to articulate
why they have the doubt, because a
reasonable doubt is a doubt that you can
assign a reason why you have that doubt
and it’s the obligation of the prosecutor to
prove it beyond that standard. The mere
feeling that you got, the jury would say, I
just feel, I feel, my feelings are not good
enough, then look at the evidence in the
case. Let’s all decide it on the evidence of
the case or the lack of evidence. You’ve got
to be able to articulate. You’ve got tp be
able to say, This is the reason I why I have
the doubt, and it’s the obligation of the State
to prove it beyond a reasonable doubt. You
are prohibited by law, in your oath, in going
beyond the evidence to convict the
defendant. You must confine yourselves
strictly to dispassionate consideration of the
testimony given upon the trial. You must
not resort to any extraneous facts and
circumstances in reaching your verdict.
That is, you must restrict yourself to the
evidence you’ve heard on the trial of this
(continued...)

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7
After a period of deliberation, the jury
submitted a question asking “Could you just
reinstruct on the one part as to what
constitutes considerable doubt?” The court
referred the jury to a part of the instruction
already given by repeating a substantial portion
of that instruction.8 After an additional period
of deliberation, the jury returned a guilty
verdict.
The MJ and the district court found
constitutional problems with this series of
7(...continued)
case. However, the lack of testimony
adduced at the trial may be relied upon as
the basis for the establishment of a
reasonable doubt.
8 In full, this second instruction was:
I am going to tell you that the
defendant is presumed to be innocent until
proven guilty beyond a reasonable doubt.
The consequence of this law is that he is not
required to prove his innocence. There is a
Fifth Amendment of the United States Con-
stitution that says that the State must prove
its case that it presents beyond a reasonable
doubt. But even though the State had the
obligation to prove its case beyond a
reasonable doubt, it does not have the
obligation to prove it beyond all doubt.
Now beyondSSbeyond a reasonable doubt
as I talked to you before, is if you have
doubt and you can assign a reason to it,
that’s a reasonable doubt. A reasonable
doubt can be established by evidence or the
lack of evidence in a case; one of the two
ways or any other way that you want to look
at it. If you entertain any reasonable doubt
as to any of the facts and elements necessary
to constitute the defendant’s guilt, it is your
sworn duty to give him the benefit of the
doubt and return a verdict of Not Guilty.
Even where the evidence demonstrates a
probability of guilt, yet it does not establish
it beyond a reasonable doubt, you must ac-
quit the accused. This doubt must be a rea-
(continued...)
8(...continued)
sonable one, and when I say reasonable one,
using the term reason as being the common
denominator, the thing to look toSSa reason,
a reasonable doubt, not a whim or fancy or
conjecture. Its got to be a reasonable doubt.
It must be such doubt as would give rise to
grave uncertainty raised in your mind by the
reason of the unsatisfactory character of the
evidence, one that would make you feel that
you had not embodied a conviction to a
moral certainty of the defendant’s guilt.
If, after having given a fair and
impartial consideration of all of the facts in
the case, you find the evidence
unsatisfactory, upon any single point
indispensably necessary to constitute the
defendant’s guilt, this would give rise to
such a reasonable doubt as justifying
returning a verdict of Not Guilty. The
prosecution must establish guilt by legal and
sufficient evidence beyond a reasonable
doubt. But the rule does not go further and
require a preponderance of testimony. What
it means in that statement is that it means
that the prosecutor doesn’t have to prove the
case beyond ALL doubt, the feeling in your
stomach, or whatever you may want to call
it, but he’s got to prove it to you beyond a
reasonable doubt, a doubt you can say this
is the reason I have doubt. A reasonable
doubt is not a mere possible doubt. We’re
not talking about probabilities. We’re
talking about a reasonable doubt. It should
be an actual and substantial doubt. It
should be a doubt as a reasonable man
would seriously entertain. It has to be a
serious doubt to which you can assign
reason.

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8
instructions. Although the precise reason for
the MJ’s recommendation that the instructions
were unconstitutional is not obvious, the MJ
and the court reasoned that the original charge
and the response to the jury question, taken
together, were constitutionally inadequate to
protect Quatrevingt’s Fourteenth Amendment
rights. The court, though, explicitly based its
decision to grant habeas relief on the
subsequent instruction. The court found that
providing only another version of the in-
structions that confused the jury the first time
did not satisfy the requirements of due
process.
The due process standard for jury charges
does not require the use of any specific
formulation; all that is required is that the jury
be instructed to find the defendant’s guilt
beyond a reasonable doubt. See Victor v.
Neb., 511 U.S. 1, 5 (1994). The relevant
question is “whether there is a reasonable
likelihood that the jury understood the
instructions to allow conviction based on proof
insufficient to meet the Winship standard.”9
Quatrevingt’s challenge focuses on four
phrases found in his initial charge: “ a serious
doubt for which you can give a good
reason,”10 “grave uncertainty,” “substantial
doubt” and “moral uncertainty.”
In Cage v. La., 498 U.S. 39, 40 (1990), the
Court held that an instruction containing the
phrases “grave uncertainty,” “substantial
doubt,” and “moral certainty” violated due
process.11 The Court has handed down two
important cases since Cage but before Quatre-
vingt’s conviction became final.12
In Estelle v. McGuire, 502 U.S. 62 (1991),
the Court replaced the previous wording of the
constitutional test as found in Cage, 498 U.S.
at 41: “how reasonable jurors could have un-
derstood the charge as a whole.” McGuire,
502 U.S. at 72 & n.4, resolved the possible
confusion over this standard and settled on the
formulation used in Victor, asking whether
9 See In re Winship, 397 U.S. 358 (1970)
(requiring each element of a charged offense to be
proved beyond a reasonable doubt).
10 The so-called “articulation requirement” (a
serious doubt for which you can give a good
reason) need not detain us. The Supreme Court
has never expressed concern with this phrase.
Although this court has expressed some doubt, our
thoughts on the matter are irrelevant under
AEDPA. See Williams v. Cain, 229 F.3d 468, 476
(5th Cir. 2000), cert. denied, 122 S. Ct. 72 (2001).
11 The instruction in Cage read:
If you entertain a reasonable doubt as
to any act or element necessary to constitute
the defendant’s guilt, it is your duty to give
him the benefit of the doubt and return a
verdict of not guilty. Even where the evi-
dence demonstrates a probability of guilt, if
it does not establish the guilt beyond a rea-
sonable doubt, you must acquit the accused.
This doubt, however, must be a reasonable
one; that is one that is founded upon a real
tangible substantial basis and not upon mere
caprice and conjecture. It must be such
doubt as would give rise to uncertainty,
raised in your mind by reasons of the
unsatisfactory character of the evidence or
lack thereof. A reasonable doubt is not a
mere possible doubt. It is an actual
substantial doubt. It is a doubt a reasonable
man can seriously entertain. What is
required is not an absolute or mathematical
certainty, but a moral certainty.
Cage, 498 U.S. at 40.
12 This is the relevant period under Teague v.
Lane, 489 U.S. 288, 310 (1989) (plurality opinion
of O’Connor, J.)

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9
there was “a reasonable likelihood that the jury
has applied the challenged instruction” so as to
violate the Constitution. Arguably, this has
raised the threshold of what a defendant must
show to prove a constitutional violation. This
in turn casts the holding in Cage in a new light;
it is possible the challenged instructions would
pass the test laid down in McGuire.
The other, and more significant, intervening
case is Victor, in which the Court parsed two
different jury charges to test the possible
unconstitutionality of several phrases. The
phrases relevant to Quatrevingt’s habeas pe-
tition are “moral uncertainty” and “substantial
doubt.”
“Moral uncertainty” might have been
thought problematic because it may give the
jurors the belief they could convict if
convinced to a moral certainty of the
defendant’s guilt, but not to a certainty based
on the evidence. This argument was rejected
in Victor, 511 U.S. at 16, in which the Court
noted the presence of other language in the
instruction that made plain the jury’s
obligation to convict on the basis of evidence.
In Quatrevingt’s charge, the sentence
immediately preceding that containing the
offending phrase reads “Even where the
evidence demonstrates a probability of guilt,
yet it does not establish it beyond a reasonable
doubt, you must acquit the doubt.” The Court
also approved a phrase almost identical to that
in Quatrevingt’s charge, noting that “an
abiding conviction, to a moral certainty” is not
constitutionally problematic. Id. at 21.
The Victor Court also dealt with the phrase
“substantial doubt.” Those words appear
twice in Quatrevingt’s charge, once in the
clause “tangible and substantial basis”
(comparing reasonable doubt to fanciful
doubt), and the second in the sentence “It
should be an actual and substantial doubt.” In
approving the use of this phrase in context, the
Court relied on two arguments, both
applicable here. First, the Court found that the
comparison of substantial doubt to fanciful
doubt makes the reference the existence of
doubt, not its magnitude. Id. at 20. The same
is true with respect to Quatrevingt’s charge,
which uses “substantial” and “fanciful” in the
same sentence.
The Court also found the existence of an
alternative definition of reasonable doubt sup-
ported the constitutionality of the charge as a
whole. Quatrevingt’s charge offers several al-
ternative formulations of reasonable doubt:
“evidence unsatisfactory on any single point
indispensably necessary to constitute the de-
fendant’s guilt”; “such doubt as a reasonable
man would entertain”; “lack of testimony. . .
may be relied upon . . . for the establishment of
a reasonable doubt.”
The “grave uncertainty” language can be
subjected to the same analysis as can the
“substantial doubt” phrase. In Cage, 498 U.S.
at 41, however, the combination of the phrases
“grave doubt” and “substantial doubt” gave
the Court pause in considering the
constitutionality of the charge. It was only the
combination of those phrases with “moral
certainty” that made the constitutional
violation “clear.” Id. That conclusion,
though, must be filtered though the new
constitutional standard and the contextual
analysis added by Victor.
The district court granted Quatrevingt ha-
beas relief, not on the basis of the
unconstitutionality of the original jury charge,
but on the failure of the reinstruction properly
to answer the confusion evident in the jury’s

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10
request to hear again the definition of
“considerable doubt.” That phrase appears
nowhere in the original charge or in the court’s
response.
Where the jury asks for a clarification of an
instruction, it is constitutionally adequate for
the court to refer to the section of an
otherwise constitutional charge. See Weeks v.
Angelone, 528 U.S. 225, 234 (2000).13 In
Weeks, the court merely referred the jury to a
paragraph of the original charge without
restating it. Id. at 229. Here, the court
repeated a substantial portion of the original
charge. Nowhere does this restatement
mention “considerable doubt.” The
restatement also contains all the mitigating
factors discussed in connection with Victor.
Because “[a] jury is presumed to follow its
instructions,” Richardson v. Marsh, 481 U.S.
200, 211 (1987), the court’s restatement of the
standard could not itself be the source of
constitutional error.
Our task under AEDPA is not to explicate
the current state of Supreme Court
jurisprudence, but to test whether a state
court’s reading of that jurisprudence is
unreasonable. For Quatrevingt to merit habeas
relief, we would need to find objectively
unreasonable the Louisiana Supreme Court’s
decision that there was not a “reasonable
likelihood” the jury applied the instruction in
an unconstitutional manner. That conclusion
must be either contrary to “clearly established”
federal law or involve an unreasonable
application of that law. In light of the
challenged instruction’s mitigating phrases not
found in Cage, the subsequent alteration of the
standard in McGuire, and the further analysis
required by Victor, we cannot call the
Louisiana Supreme Court’s decision
unreasonable.
REVERSED.14
13 Teague does not prevent the application of
new rules of constitutional law that advantage the
state. See Gilmore v. Taylor, 508 U.S. 333
(1993).
14 We note that the district court’s order to retry
Quatrevingt, although now moot, is beyond the
power of a federal court. A successful habeas
petition cannot result in ordering the state to retry
a defendant. See In re Medley, 134 U.S. 160, 173
(1890).

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